Nirmala Gupta vs State of U.P. and Others

Pradeep Kant, J.

Heard the counsel for the petitioner Sri Manish Kumar, Sri Mukund Tiwari for the respondentState and Sri Umesh Narain Sharma, Senior Advocate, for the person, who has moved the application for impleadment, namely, the complainant.

Admit.

The respondents are granted three weeks'' time to file counter affidavit. Rejoinder affidavit may be filed within one week thereafter.

List thereafter for hearing.

Assailing the show cause notice issued by the State Government under Section 48(2) of the U.P. Municipalities Act, 1916 to the petitioner, who is Adhyaksha of Nagar Palika Parishad, Bindki, district Fatehpur dated 16.10.09, the petitioner has mainly urged the following points: (i) the complaint having been filed by a Member of Legislative Assembly of the ruling party, whereupon directions have been issued to submit the report time and again to the District Magistrate by the State Government saying that the matter arises out of reference to the Chief Minister, therefore, immediate action be taken on the complaint, though complaint should have been filed to the State Government and not to the Chief Minister under the rules itself vitiates the entire proceedings; (ii) the entire action is not only mala fide and biased but the notice also suffers from malice in law; (iii) despite direction being issued by the State Government and first report submitted by the District Magistrate having not been accepted by it, no opportunity was given to the petitioner, though directed by the State Government nor the officers, who had submitted their report, were examined nor their reports were furnished to the petitioner and the same report was again forwarded to the State Government, which also vitiates the entire proceedings; and (iv) the charges though are 15 in number, but none of them, on the fact of it, could be said to be even, prima facie, proved and the observations made/findings recorded do not take into consideration the actual and factual position on record of the Nagar Palika Parishad, which has been duly explained by the petitioner in the writ petition, which proves that the action is based on nonexistent facts and only colour has been given by the District Magistrate to make out a case against the petitioner.

In support of the plea of mala fide and revengeful action, it has been submitted by the petitioner that the petitioner belongs to Samajwadi Party, whose presence as Adhyaksha was not being tolerated by the members of ruling party and, therefore, the Member of Legislative Assembly submitted the complaint of all the Bahujan Samaj Party Sabhasads, raising flimsy charges with no proof at all and though the charges do not make out any case for holding enquiry, the District Magistrate of his own, even without any directions being issued by the State Government, got an enquiry conducted by the Additional District Magistrate, who submitted his report on 11.2.09, which report was not accepted by the State Government as the same was submitted without any opportunity being given to the petitioner and the officers and officials of the Nagar Palika Parishad, with a direction that opportunity be given to these persons in respect of the said report, but no such opportunity was afforded to the Adhyaksha nor to the officers, nor the report submitted by these officers was ever furnished to the petitioner.

It is the specific case of the petitioner that the District Magistrate and Additional District Magistrate became highly prejudiced against her as against an wholly arbitrary and illegal order of theirs, for demolishing the tubewell and the two shops (stores), the petitioner as Adhyaksha of Nagar Palika Parishad filed a writ petition bearing number 40147 of 2008, in which an interim order was passed on 8.8.08, restraining the aforesaid officers from demolishing the said constructions, but despite the aforesaid interim order passed by the High Court, they demolished the disputed constructions, compelled by which action, the petitioner filed a contempt case against the District Magistrate, Additional District Magistrate and Sub Divisional Magistrate, who are presently in office and were responsible for demolishing the aforesaid constructions, in violation of the High Court''s order in which notices were issued. The Sub Divisional Magistrate called the petitioner on 12.8.08 and scolded and threatened to remove the petitioner and in these circumstances, the petitioner who was continuously working, without any complaint on the said post, since elected on 18.11.06, was subjected to present proceedings.

The complaint was made by the Corporator belonging to Bahujan Samaj Party on 6.10.08 and the local M.L.A. of the district, forwarded the same alongwith complaint to the Chief Minister on that very date for conducting the enquiry.

Another complaint was made by the aforesaid M.L.A. belonging to Bahujan Samaj Party on 24,12,08, on which the District Magistrate directed the Additional District Magistrate to conduct the enquiry and on the same very date, the District Magistrate issued a letter to the petitioner to submit his pointwise explanation, which she did on 9.1.09.

After the State Government did not accept the report dated 11.2.09 and sent back the matter to the District Magistrate, the petitioner vide letter dated 14.9.09 was required by the District Magistrate to submit her reply on the charges, which have been found proved in the enquiry report of the Additional District Magistrate within a week, but the petitioner was not provided the report of the Additional District Magistrate dated 11.2.09. This letter dated 14.9.09 was served upon the petitioner on 22.9.09 i.e. after expiry of seven days period but the petitioner found that that the report of the Additional District Magistrate dated 11.2.09 was not provided, therefore, immediately she sent a letter on 24.9.09 through registered post for providing the copy of the said report.

The report of the Additional District Magistrate dated 11.2.09 was supplied to the petitioner on 30.9.09 but it was discovered that the said report was based upon the reports of the Executive Officer as well as other documents but they were again not supplied and, therefore, it was not possible for her to submit an effective reply, therefore, she made a representation on 5.10.09 before the District Magistrate asking for those documents, on which the report was said to be prepared.

The District Magistrate instead of meeting the said demand, on that very date i.e. 5.10.09 wrote a letter to the State Government saying that reply has not been submitted by the petitioner but she had submitted reply earlier on 9.1.09 and on the basis of the same, the report submitted by the Additional District Magistrate was confirmed again.

On the basis of the same report dated 11.2.09, which was earlier not accepted by the State Government, the District Magistrate, without providing any copy of the said report to the petitioner initially and then when asked for, she was supplied the report, but the report of the executive officer as well as other documents, on the basis of which the said report was furnished, was not supplied and it was incorrectly informed to the State Government that the petitioner has not submitted any reply when the matter was reconsidered and, therefore, relying upon the earlier explanation given on 9.1.09, he sent the same very report which was given by the Additional District Magistrate.

The petitioner also made a representation to the State Government on 19.9.09 saying that the District Magistrate has not supplied the documents and the copies of the relevant papers.

The State Government passed the impugned order on 16.10.09.

Prima facie, we are satisfied that the report dated 11.2.09, which was again furnished to the State Government was got prepared by the Additional District Magistrate, without any order of the State Government for holding any such enquiry as under Section 48, it is the satisfaction of the State Government that counts for the purpose of taking action under the said provision and, therefore, the District Magistrate could not have got the enquiry conducted on receipt of a complaint by the Additional District Magistrate of his own. However, when the report was sent to the State Government, the State Government itself did not agree with the said report and asked the District Magistrate to get it confirmed and reconsidered after affording opportunity to the petitioner and other concerned officers/officials, but the District Magistrate failed to perform the legal obligation and the directions issued by the State Government thus, apparently it seems that reasonable opportunity was not afforded to the petitioner, even at the time of reconsideration of the said report.

It is also on record and has been vehemently urged by the respondent State that there were three complaints, which find mention in the enquiry report, out of which one set of complaints was furnished by the Member of Legislative Assembly dated 7.11.08 on the basis of which the report dated 11.2.09 was prepared and thereafter two more complaints of Jeevan Lal and Anurag Tiwari and others were filed, besides one more complaint, which was received by the Commissioner from Chet Narain Misra and others.

The complaints which have been enquired into and the report dated 11.2.09 which has been brought on record, a perusal of the same reveals that either the charges are absolutely vague or they do not take into account the fact position on record of the Nagar Palika Parishad, which has been given in detail by the petitioner alongwith necessary documents in the body of the writ petition itself and a perusal of the same reveals that action aforesaid has been taken on such facts and grounds, which, prima facie, are not tenable.

We, therefore, being, prima facie, satisfied that it was not a case where the charges can be said to be of serious nature, which have been found even, prima facie, proved as (i) the petitioner was not afforded any opportunity, much less reasonable opportunity, as directed by the State Government and the same very report, which was prepared by the Additional District Magistrate, was again forwarded to the State Government; (ii) the documents and the material on record of the Nagar Palika Parishad was not taken into consideration at all, which apparently disproves the allegations made against the petitioner; and (iii) there appears to be force in the plea of the petitioner that since the action of the District Magistrate, Additional District Magistrate and the Sub Divisional Magistrate of demolishing the tubewell and two shops (stores) of the Nagar Palika Parishad was challenged by the petitioner in a writ petition in the High Court, in which an interim order of stay was passed, but even then since they demolished the said constructions and contempt notices were issued to them, the impugned action cannot be taken as totally bereft of mala fide nor it can be said that the orders so passed do not suffer from malice in law.

For the aforesaid reasons, we stay the operation and implementation of the order dated 16.10.09 passed by the State Government and direct that the petitioner shall be allowed to continue to discharge her functions, administrative and financial both, of Adhyaksha, Nagar Palika Parishad, Bindki, District Fatehpur, till further orders of the Court.

The respondents are at liberty move an application for vacation of stay, while filing the counter affidavit.